Many of
us have watched with interest the "goings on" in THE APPRENTICE South
Africa. I guess you have had a few ideas on who should
have won, why the recruitment process was flawed and what you would have done
if you had been one of the people given the chance to go through the "15
week job interview". So what does the law say about hiring and
firing in this manner...

Before an
employer can say, "You are dismissed", he/she must make sure that the law
has been applied. Failure to do so could result in the "candidate" challenging the
decision made by the employer. Here is the basis of the
Termination Process during the Probation period:

It is
time to take preventative action and look after your Workplace Rights. Many employers prefer to lay down the law rather than to
obey it. When confronted, they often would prefer to use all
available resources to frustrate a just outcome
rather than make good on their error. To ensure that employees have the best
resources at their disposal Labour
Protect now
offers
membership! >> more

The
Labour Protect website has become an invaluable source of information on
Workplace Rights. It is visited by many local and international
advice seekers on various labour law issues. We
are pleased to advise, that for the mean while, the website information
is FREE
to all those wanting information on South African labour law. Visit our
site at
www.labourprotect.co.za

Search wwwLabour Protect

Advice Forum:

The
Labour Protect Advice Forumis extremely popular for those seeking advice. It gives
employees the opportunity to voice their labour problems and have an
expert give them some guidance on what path to take.
Have a look and see for yourself>> Labour Protect
Advice Forum. (Please note the "Terms of Use"
policy published on the site...)

We
have extended our network of participating labour experts into many
of the main areas in South Africa. Labour Protect prides itself
in only using the most experienced and capable lawyers on the Labour
Protect network. (As Labour Protect operates largely independently of the
any of the lawyer used, if our members are not completely happy with the service
provided, we will address the problem with the expert and, if needs be, cease using the
services of such
experts for future instructions. We take the service of our Current
Members very seriously...)

We
fully realize that simply providing advice and information cannot
substitute the intervention of an experienced labour lawyer in a
complicated legal matter.
Labour Protect is not just a virtual business
existing in the "vapoursphere" but through our national “bricks and mortar” network of labour
lawyers and experts
we
provide the opportunity for employees to visit an expert in their time
of need.
The network can
be accessed through the national
telephone number 0860 522687 or 0860 LABOUR. For our
Current Members, you can call this number for
FREE assistance
in terms of the Labour Protect Membership Rules. >> more

For
non members facing unfair dismissal, unfair labour practices or unlawful
retrenchment, you too can use the services of the lawyers on the
network. (If you are not a member, be sure to discuss the costof such service to avoid any surprises
at a later stage…! The telephone number to call is 0860 522687...)

An amendment to the
Code of Good Practice : Unfair Dismissal contained in schedule 8 of
the LRA regulates the respective rights of an employer and employee
in a probationary context. The amendment provides that an employer
may require a newly hired employee to serve a period of probation
before the appointment of the employee is confirmed.

The purpose of
probation is to establish whether or not the appointee’s performance
is of an acceptable standard before permanently employing the
employee.

The amendment confirms that the
purpose of probation is to give the employer an opportunity to
evaluate an employee's performance before confirming an appointment.
It is made clear that probation should not be used for other
purposes, for example, to deprive employees of the status of
permanent employment.

Probation periods
should be reasonable. This will depend on the nature of the job,
which in turn will determine how long it will take to establish
whether the employee is performing satisfactorily or not.

As a general guideline, the more complex the nature of the job, the
longer the probation period eg only a month may be needed to
evaluate the performance of a cleaner, but four months may be
appropriate for an accountant.

Probation periods
may be extended, within reason, where the employer is not convinced
that the employee is performing to the required standard.

It is advisable
that the probationary period be stated in writing (eg as part of the
employment contract or letter of appointment) and that the company’s
expectation during the probation period be communicated clearly and
are understood by the employee. Should the probation be extended,
it should once again be done in writing.

Any person making a
decision about the fairness of a dismissal of an employee for poor
work performance during or on the expiry of a probationary period
ought to accept reasons for dismissal that may be "less compelling"
than would be the case had the dismissal been effected after the
completion of the probationary period. This establishes a lower
hurdle of substantive fairness that the employer must jump to prove
the fair dismissal of a probationer.

Schedule 8 of the
Code of Good Practice: Dismissal, deals with probation.

An employer has the
right to require a newly hired employee to serve a period of
probation before confirmation of permanent appointment. This period
is determined in advance and should be for a reasonable period.

Steps:

1.The employer must determine if the employee failed to meet
the work standard.

2.If the employee did not meet the standard:

a.did the employee know; or

b.could he/she have been reasonably expected to know the
standard.

3.The employer should give the employee instruction, training,
guidance and/or counseling to assist the employee to meet the
required standard of work.

4.This means that he employer should evaluate an employee
during the probationary period and should provide regular feedback.

5.After completing the above, the employer should consider
other ways short of dismissal eg extending the probationary period
in instances where the employee still does not meet the required
standard.

6.The employer may only decide to dismiss/ extend the
probationary period only after the employee has had an opportunity
to make representations. A trade union representative or a fellow
employee may assist the employee.

7.Although it is not necessary to hold a formal enquiry, the
employer must still comply with substantive and procedural fairness.

Note: It
is suggested that employer who decide to dismiss or extend the
probation period of an employee, do so in writing. This should
include advising the employee of the right to refer the matter to a
council or the CCMA.

A probationary
employee cannot be dismissed for reasons that are automatically
unfair eg participation in a lawful strike. The probationary clause
cannot be relied upon for dismissing for these reasons.

Should it be become
necessary to dismiss an employee during the probation period for
reasons other than poor performance, the normal procedural and
substantive requirements are valid and need to be applied. This
includes dismissal for misconduct, incapacity (ill health/ injury)
or retrenchments. For example, if a probationary employee is
accused of theft, a disciplinary hearing must be held.

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